Monthly Archives: December 2013

Natural Law and Its History

John Finnis, Natural Law Theory: Its Past and Its Present, 57 Am. J. Juris. 81 (2012).

The image of natural law to the modern mind is one in which certain actions, states-of-affairs, and “values,” are represented as being right or wrong, reasonable or unreasonable, depending upon whether they can claim to be in accord with or contrary to nature. Though apparently hard to shift, this image, as John Finnis and others have pointed out on numerous occasions, is misconceived: the orientation of thinking running rather from what is reasonable and right to what is (therefore) in accord with nature.

The matter is dealt with in some detail in the second chapter of Natural Law and Natural Rights, and the rest of that book constitutes an example precisely of arguments of practical reasonableness (a reworking of Aquinas’s prudentia) as the ground of a theory of “natural law” (i.e. a fully critical basis for evaluation of human acts and institutions, and the subject-matter of the social sciences). It is taken up again, in much greater detail, in Finnis’s book on Aquinas, in the context of Aquinas’s own account (itself quite clear on this point) of human choosing and deliberating. The present essay situates the discussion within a much broader historical context, ranging from the treatment of “nature” in Platonic and Sophist philosophy through to the positivism of Hart and Austin. Just as the idea of “natural law” must be logically separated from the beliefs and opinions of those who assert its existence (only the latter having a temporality and history), so the skeptical, nihilist or agnostic assertion that there is no moral law, but only the satisfactions of “animal” nature (subrational emotions, desires to which reason is the ingenious servant), represents a single permanent idea which plays out in numerous different forms in different times and places. How could it be otherwise? For the skepticism is directed precisely at reason’s governance, its ability to identify and work its way towards those human goods that stand at the center of natural law thinking. In one long argument, the essay unpicks, steadily and relentlessly, the confusions that underpin the strand of skeptical thinking that unites the Sophists’ outlook to Hart’s own commitment to legal positivism. Continue reading "Natural Law and Its History"

Does Becoming a Party to the International Criminal Court (ICC) Have a Positive Effect on Regulating Violence Against Women in Domestic Law?

Fionnuala D. Ní Aoláin, Gendered Harms and Their Interface with International Criminal Law: Norms, Challenges and Domestication, Minnesota Legal Studies Research Paper No. 13-19 (2013), available at SSRN.

Expanding legal definitions and the enforcement of rape and domestic violence laws have been a major focus of the feminist agenda for decades, not only in the United States but also around the world. While we tend to think of such crimes in national terms, Fionnuala Ní Aoláin, currently the Dorsey and Whitney Professor of Law at the University of Minnesota Law School and Co-Director of the University of Ulster Transitional Justice Institute in Northern Ireland, looks at these crimes more broadly to suggest that developing international criminal norms about rape may have a positive impact on developing more robust domestic law. Professor Ní Aoláin’s work in the fields of human rights and sex-based violence in times of war has been widely recognized, and the Irish government has twice nominated her to the European Court of Human Rights.

This working paper does not analyze legal issues in the United States. However, the use of international human rights law to affect a paradigm shift in analyzing domestic violence cases and other gendered crimes such as trafficking is a hot topic in the United States since the 2011 decision in Jessica Lenahan (Gonzales) v. United States by the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS), which held the U.S. responsible for human rights violations in domestic violence settings. The United States government participated in that litigation pursuant to our ratification of the American Declaration of the Rights and Duties of Man (American Declaration). While we have not signed on to the International Criminal Court, which is the focus of Professor Ní Aoláin’s current article, her insightful analysis confirms that efforts to encourage signing and ratification of international criminal and human rights treaties should remain a priority here for those who hope to promote domestic law reform punishing all forms of violence against women. Continue reading "Does Becoming a Party to the International Criminal Court (ICC) Have a Positive Effect on Regulating Violence Against Women in Domestic Law?"

Fair Use in Context

Michael C. Donaldson, Refuge From The Storm: A Fair Use Safe Harbor For Non-Fiction Works, 59 J. Copyright Soc’y U.S.A. 477 (2012), available at SSRN.

When is a use of a copyrighted work a fair use? This issue has grown in significance with the increase in the economic value of copyrighted works and in the ways in which users can distribute, rework, or otherwise borrow from copyrighted works. The fair-use inquiry is contextual, formally focusing on the nature and purpose of a use, the creative nature of the work, the amount of the work used, and the effect of the use on the copyright owner’s ability to economically exploit the work. For some, fair use’s attention to context renders it an unreliable ally for the diligent user.

However, a number of commentators, including this one,1 have argued that the multifactor inquiry does not lead truly to “case-by-case” adjudication. Instead, the principles of fair use protect certain identifiable patterns or bundles of uses with soft rules while remaining sufficiently open textured to balance interests implicated by new or emerging patterns of use. Others have gone further. My colleagues Peter Jaszi and Patricia Aufderheide have worked with creative communities to identify and articulate best practices in fair use in the context of their patterns of use as described in their recent book Reclaiming Fair Use. Continue reading "Fair Use in Context"

Don’t Get No Respect: Defining the Field of Public Health Law

Micah L. Berman, Defining the Field of Public Health Law, 15 DePaul J. Health Care L. (forthcoming 2014), available at SSRN.

In a methodical, comprehensive exposition, Micah Berman’s forthcoming article considers why public health law remains the Rodney Dangerfield of the legal academy. As a member of a working group of scholars and practitioners who share the mission of advancing the prominence of public health law, I am well versed on the issue but was enlightened by Berman’s insights. I especially appreciated that he began by begging his own question: What difference does it make to recognize public health law (or any other area of law, for that matter) as a “field”? Why it matters, he answers, is respect: For an area of law to be recognized as “field” is to be in the mix of law school hiring priorities, to headline symposia and conferences, and generally to be taken seriously within the academy and practicing bench and bar.

Berman’s article is exceptionally well organized, stepping through difficult foundational questions, clearly explaining the paradigms, testing those paradigms with other examples, and engaging the leading scholarship on the problem presented. His roadmap proceeds by: (1) Defining a field of law; (2) defining public health law; and (3) evaluating whether public health law is a field of law. Continue reading "Don’t Get No Respect: Defining the Field of Public Health Law"

The Costs of Imprisoning Nonpaying Parents

Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Noncustodial Fathers and Their Families, 15 J. of Gender, Race & Justice 617 (2012), available at SSRN.

There are well-known problems with child support, the court-ordered financial obligations that non-custodial parents—whether divorced or separated from the other parent, or never married to that parent—owe to custodial parents for the care of the children. It has been long documented that such support awards are often too low, and are far too frequently under-paid or not paid at all. Over the last few decades, a panoply of federal, state, and interstate laws and procedures have been created to try to increase the enforcement of support awards and to increase the amount of money reaching children and their caregivers. By most accounts, these efforts have been successful, at least to some degree. However, legal reforms often have unintended consequences, and, as often as not, these negative consequences often affect groups that are already disadvantaged. As Tonya Brito explains in her important article, Fathers Behind Bars, these negative consequences are happening with enforcement measures for child support, especially the use of incarceration for non-payment.

In some states, those in prison for non-payment of support make up a significant portion of the jail population. This is perhaps not surprising. Imprisoned parents (usually, but not always, fathers) often are ensnared in a cycle in which they are incarcerated because they cannot earn money to pay off their obligations; their incarceration record hinders their employment opportunities after incarceration, placing them in the unenviable position of risking additional imprisonment because they are still unable to pay off their support obligations. To illustrate this troubling cycle, Brito focuses on the story of Michael Turner, who had been in prison six times since 2005 for nonpayment of child support. Continue reading "The Costs of Imprisoning Nonpaying Parents"

What’s So Special About Information Security

Andrea M. Matwyshyn, The Law of the Zebra, 28 Berkeley Tech. L.J. 155 (2013).

A debate continues to brew about the proper interpretation of the Computer Fraud and Abuse Act (CFAA), the federal statute that imposes criminal penalties on individuals who access computer networks without authorization.  For at least a decade, scholars and a growing number of courts have wondered whether the owner of a computer network could define “authorization” using form “terms and conditions” of the sort often presented to consumers who purchase or use digital services.  If that strategy were successful, then someone who clicked “I Agree” on a digital form yet failed to comply with all of its terms might be accused – even convicted – of the federal crime specified by the CFAA.

Andrea Matwyshyn uses that apparently technical problem to revisit a much larger question:  When, whether, and how the law should treat computers and computer networks as special in any way when dealing with a host of doctrinal and policy issues:  commercial law, intellectual property law, telecommunications law, antitrust law, criminal law, and so on?  This was the subject of a famous scholarly debate back at the turn of the 21st century between Lawrence Lessig, who argued that considering a “law of cyberspace” offered commentators access to potentially valuable insights about how people interact with each other1, and Judge Frank Easterbrook, who accused cyberspace promoters of constructing an unworkable and unhelpful “law of the horse.”2 No one “won” the debate in its original form, but in the late 1990s the question was mostly academic, literally.  Too few law and policy judgments turned on the answer to make the debate matter in any but a conceptual or theoretical sense. Continue reading "What’s So Special About Information Security"

ABA Journal Puts Jotwell in Blawg 100

Vote for Jotwell

The ABA Journal has listed Jotwell as one of the top 100 law-related blogs of 2013, and invites readers to vote for which of the 100 is their favorite.

We’re starting late, as the contest has been going for a while, but readers are invited to vote for Jotwell as their favorite law blog — look in the “News/Analysis” category. Balloting ends Dec. 20. Please vote, as a good result will help publicize Jotwell’s reviews of legal scholarship to the circa 550,000 lawyers who read the ABA Journal.

This may also be an occasion to remind readers that we have a nice Jotwell Flyer that you can print out and post to tell colleagues about Jotwell. And, of course, we welcome your writing — see our Call For Papers.

The Sublime Object of Race

Nancy Leong, Racial Capitalism, 126 Harv. L. Rev. 2151 (2013).

Nancy Leong provides the legal academy with a riveting account of the ways in which the logic of capital influences racial politics. Leong weaves together several topics of interest to legal scholars in her new article: criticisms of capital, diversity politics, and race as property. Her analysis revives the Marxian1 analysis conducted by early scholars of the critical legal studies movement at a time when questions of capital and race are as relevant as ever. I like it lots.

Leong’s work takes on the momentous task of breathing new life into Marxian legal theory. It also contributes to our substantive knowledge of the ideology of diversity and to our understanding of Marxian ideas and their relationship to law. Leong’s contribution is timely given the recent Supreme Court decisions in Fisher v. University of Texas and Shelby County v. Holder, both of which arise from historical legacies of race and racism. Her article does much to question the rhetoric of diversity, the linkages of capitalism and law, and the complexities of racial politics in a racialized world. Continue reading "The Sublime Object of Race"

Posner on Realist Judging

Richard A. Posner, Reflections on Judging (Harvard University Press, 2013).

Reflections on Judging, by Judge Richard A. Posner, is the latest contribution to the familiar genre of extrajudicial writings by judges on the judicial process. But the book stands apart from most other works in the genre by the way that Posner situates the judge as part of a larger system while simultaneously maintaining a candid, personal, experience-based approach throughout.

In addition to offering personal reflections on the core judicial function of deciding cases through a sometimes creative process, Posner discusses the effects of pre-judicial careers, judicial selection, judicial training, law clerk selection and management, the writing process, the qualities of good and bad judicial opinions, the distinctive functions of trial court and intermediate appellate judges, judicial “googling” (he is an enthusiast), appellate advocacy, and many other matters beyond those conjured up by an image of the “judicial process” as the individual judge wrestling alone with difficult legal issues. For Posner, it is a matter of “urgent concern” to figure out “how the federal judiciary can cope with the increasing complexity of federal cases.” (p. 3) A question is “complex,” in this usage, “when it is difficult by virtue of involving complicated interactions, or, in other words, involving a system rather than a monad.” (P. 3) Appropriately, then, the book’s non-monadic reflections on judging exemplify the kind of approach that he thinks federal judges ought to take to complex matters more generally. Continue reading "Posner on Realist Judging"